In The Hon'Ble Supreme Court of India: Rafiq Ahmed . Petitioner v. Afsana ..Respondent

-Second SGT University - Indian National Bar Association National Moot Court Competition, 2017-
TEAM CODE: SGT 207
IN THE HON’BLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION NO............/ OF 2017
[UNDER ARTICLE 136 OF CONSTITUTION OF INDIA]
Rafiq Ahmed ….………………………………Petitioner
v.
Afsana ……………………………………..Respondent
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF THE SUPREME COURT OF INDIA
- Memorandum Drawn And Filed By The Petitioner- Page 1

TABLE OF CONTENTS
List of Abbreviation ..................................................................................3
Index of Authorities ...................................................................................4
Statement of jurisdiction ...........................................................................6
Statement of facts .......................................................................................7
Statement of issue .......................................................................................9
Arguments .................................................................................................10
Arguments advanced
1. Whether ‘Triple Talaq’ is unconstitutional on the ground that it violates the fundamental
right of women in general and Muslim women in particular? ................................12
1.1. There is no violation of Article 21:...........................................................13
1.2. Article 14 v. Article 25:.............................................................................13
2. Whether the Muslim woman’s right to claim maintenance from her husband under section
125 Cr. P.C. is circumvented by the provisions of Muslim Women (Protection of Right on
Divorce) Act, 1986 and if so, whether it violates any of the constitutional
provisions?.....................................................................................................
2.1. The application of Section 125 Cr.P.C. to Muslim Divorced women frustrates the
object of the Act of 1986………………………………………………………………
2.2 The Petitioner here humbly reiterates that The Muslim Women (Protection of Rights
on Divorce) Act, 1986 has an overriding effect............................................
3 Whether a married woman in general and a married Muslim woman in particular has a
legal right to claim separate residence in the matrimonial home?..........................
3.1.
Prayer ..........................................................................................................

LIST OF ABBREVIATIONS
1. AIR All India Reporter

2. SCC Supreme Court Cases
3. V Versus
4. Cr.P.C Criminal Procedure Code
5. SCR Supreme Court Report
6. Anr Another
7. Cal Calcutta
8. Edn Edition
9. Para Paragraph
10. U.P Uttar Pradesh
11. Vol Volume
12. Sec Section
13. All Allahabad
14. Pg Page
15. H.C High Court
16. S.C Supreme Court
17. ALJ Allahabad Law Journal
18. Har Haryana
19. U.P Uttar Pradesh
20. BMMA Bharatiya Muslim Mahila
Andolan
21. MPL Muslim Personal Law

INDEX OF AUTHORITIES
S.No CASE CITATION

1. Daniel lathif v. Union of 2001 AIR 3958,
India
2. Khurshid Khan Amin Khan 1976 (78) BomLR 240
v. Husnabanu and others
3. Olga Tellis v. Bombay MANU/SC/0039/1985.
Municipal Corporation
4. Maneka Gandhi v. Union of 1978 SCR (2) 621
India
5. Nagoor Mohamed Farooq I (2001) DMC 596
And Others vs Smt. Mavada
Roashan Jahan And others
6. A.A. Abdulla v. Mohmuna AIR 1988 Guj 141
Saiyadbhai
7. Md. Yunus v. Bibi Phenkani (1987) 2 crimes 241.
alias Tasrun Nisa
8. Abid Ali v. Mst. Raisa (1988) 1 Raj LR 104.
Begum
9. Rizwana Begum v. Matiullah 1989 Cr.LJ (NOC) 155 Ori
10. Sir Dinshaw Fardunji Mulla, 18th Edition, at p.301.
11- Mahamadrafik Akbar on 15 December, 1998
Bagwan vs Nurbegam
Mahamadrafik Bagwan
12. Karim Abdul Rehman Shaikh on 11 July, 2000
vs Shehnaz Karim Shaikh &
Others
BOOKS REFERRED
S.No. NAME
1. R.V. Kelkar’s Criminal Procedure Code, 6th Edition, Eastern Book Company
(2014)
2. Sarkar’s Code of Criminal Procedure, 10th Edition, Lexis Nexis (2012)
3. S.N Mishra Code of Criminal Procedure, 17th Edition, Central Law Agency
4. Aqil Ahmad’s Mohammedan Law, 25th Edition, Central Law Agency
5. I.A Khan’s Mohammedan Law, 14th Edition, Central Law Agency

6. Mulla’s Personal law, 16th Edition, Allahabad Law Agency

7. M.P Jain Indian Constitutional Law, 6th Edition (2013)
STATUES REFERRED
S. No. NAME
1. The Constitution of India,1950
2. The Criminal Procedure Code, 1973
3. Muslim Women (Protection of Rights on Divorce) Act, 1986
4. The Protection of Women from Domestic Violence Act 2005
5. Hindu Adoptions and Maintenance Act, 1956

STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 136 of
the Constitution of India as follows:
136. Special leave to appeal by the Supreme Court ---
(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing
in clause (1) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the Armed forces.
The Supreme Court has a jurisdiction to entertain and hear appeals by granting special leave
against any kind of judgment or order made by any Court or Tribunal in any proceedings and
the exercise of this power is left entirely to the discretion of the Supreme Court.

STATEMENTS OF FACTS
1. Rafiq Ahmed (bank employee), aged 25 yrs, fell in love with Ms.Aishwarya, a Hindu
aged 22 yrs, Both decided to get married, but Rafiq’s parents did not agree for the
same, thus Aishwarya converted herself as a Muslim and married Rafiq under the
Muslim Personal Law on 2.1.2010.
2. Later, Rafiq and his parents started pressurising Afsana to bring more dowry from her
parents, Rafiq and his parents started maltreating and torturing her mentally and
physically. On 15.12.2010 when Afsana was in advanced stage of pregnancy, Rafiq
took her to her parental home and left her there. Rafiq did not bring her back to the
matrimonial home, Rafiq told Afsana that unless she brings more dowry as demanded
by his parents, she has no place in the matrimonial home.
3. On 15.2.11, when Afsana gave birth to a female child. She requested Rafiq several
times to take her and the newly born daughter to matrimonial home, but in vain.
4. On 26.12.2011, Afsana, who was unemployed and had no source of income, filed a
petition under section 125 Cr. P.C. in the Family Court Gurugram and claimed
maintenance of Rs. 20000/- per month for herself and the child from her husband
Rafiq who was getting a salary of Rs. 55000/- per month and also 2 rooms for
residence exclusively for herself and the child in the matrimonial home. In the said
petition she also narrated the acts of cruelty perpetrated upon her by Rafiq & his
parent.
5. Rafiq denied all allegations levelled by Afsana and on the contrary, set up a plea that
Afsana had left the matrimonial home to stay with her parent of her own accord and,
had in fact deserted him since 1.12.2010 and also contended that she had never been
subjected to cruelty by him or his parents as alleged in the petition. Accordingly he
prayed that Afsana was neither entitled to claim any maintenance nor entitled to any
separate residence in the matrimonial home which was his ancestral property.
6. On 2.3.2012 while the said petition for maintenance was pending in the Family Court,
Rafiq pronounced irrevocable triple talaq to divorce his marriage with Afsana and
sent her by registered post, a Cheque of Rs. 25000/- as her “Mehar”. In the Family
Court, he set up an additional plea that under the provision of the Muslim Women
(Protection of Right on Divorce) Act 1986, he is not liable to pay any maintenance to

Afsana and the daughter after Talaq as he has paid her the requisite customary
allowance.
7. The Family Court directed Rafiq to pay Rs. 12000/- per month to Afsana to maintain
herself and the daughter from the date of presentation of petition till the completion of
“Iddat period” Aggrieved by the decision of Family Court, Afsana appealed to the
High Court of Punjab & Haryana at Chandigarh and claimed enhanced maintenance
@ Rs.20000/- p.m. for herself and her child beyond “Iddat Period”.
8. The learned High Court observed that the Islamic practice of divorcing a women by
pronounceable ‘Talaq’ three times successively, if at all such practice existed in the
personal law of Muslims, is violative of the right of Muslim women and accordingly
held that the ‘Triple Talaq’ being unconstitutional, the divorce was not valid and
Afsana was entitled to the maintenance @ Rs, 20000/- per month for herself and the
child and also entitled to residence comprising 2 rooms exclusively for herself and her
child in the matrimonial home.
9. Aggrieved by the judgment of the High Court Rafiq Ahmed has filed a Special leave
Petition (SLP) in the Apex Court challenging the impugned Judgment.

STATEMENT OF ISSUES
1. Whether ‘Triple Talaq’ is unconstitutional on the ground that it violates the

fundamental right of women in general and Muslim women in particular?
2. Whether the Muslim woman’s right to claim maintenance from her husband under
section 125 Cr. P.C. is circumvented by the provisions of Muslim Women (Protection
of Right on Divorce) Act, 1986 and if so, whether it violates any of the constitutional
provisions?
3. Whether a married woman in general and a married Muslim woman in particular has
legal right to claim separate residence in the matrimonial home?

ARGUMENTS

The Petitioner would like to contend the disputed point put forth that Triple Talaq violates the
Right to Life as vested by article 21 of the Constitution wherein keeping in mind the hanging
times and evolving meaning of the said article. The Petitioner would also contend the
argument that Triple Talaq violates articles 14 of the Constitution where there is already an
existing Act for the Muslim Women to claim maintenance and lead a decent and dignified
life. Further, the Petitioner raises the issue where his Fundamental Right of Right to Religion
as given in article 25 of the constitution is violated and the incorrect interpretation of the The
Holy Quran by the Honourable Court.
2. Whether the Muslim woman’s right to claim maintenance from her husband
under section 125 Cr. P.C. is circumvented by the provisions of Muslim Women
(Protection of Right on Divorce) Act, 1986 and if so, whether it violates any of
the constitutional provisions?
The Petitioner would answer the second issue on whether provisions in the Cr.P.C would
circumvent to claim maintenance for Muslim Women. The Muslim parties, being subject to
Muslim Personal Law, in all respects are governed by the Muslim Personal Law by default
and hence the general law relating to maintenance contained in Section 125 Cr.P.C. comes
into application only upon the mutual consent of the parties.

3. Whether a married woman in general and a married Muslim woman in

particular has legal right to claim separate residence in the matrimonial home?

ARGUMENTS ADVANCED

The petitioners humbly would like to submit that the contention of Triple Talaq being
unconstitutional and its violative effect on fundamental rights is flawed and also to state the
AIMPLB committee report1: Triple talaq provides security to wife. The affidavit says,
“Granting husband the right to divorce indirectly provides security to wife”. Explaining the
reasons for this, it says, “Marriage is a contract in which both the parties are not physically
equal. Male is stronger and female weaker sex. Man is not dependent upon woman for his
protection. On the contrary, she needs him for her defense. If there develops serious discord
between the couple and husband does not at all want to live with her, legal compulsions of
time consuming separation proceedings and expenses may deter him from taking the legal
course. In such instances, he may resort to illegal, criminal ways of murdering or burning her
alive.”
In the case of Dilshan Pathan vs Ahmadkhan Pathan it was held that mere pronouncement
of Talaq by the husband or merely declaring his intentions or his acts of having pronounced
the Talaq is not sufficient and does not meet the requirements of law. In every such exercise
of right to Talaq the husband is required to satisfy the preconditions of arbitration for
reconciliation and reasons for Talaq.2 It has argued in Ahmedabad Women Action Group v
Union of India that it is the issue of freedom of conscience, guaranteed under Article 25 and
26 read with Article 29 of the Constitution. The Supreme Court held that these were matters
wholly involving issues of state policies, with which the Court has no concern, and therefore,
to be dealt with by the legislature and not the courts, hence the very challenge by the
respondent is invalid.3
1
Joint Press Conference By Aimplb and Muslim Organisations, Uniform Civil Code unacceptable to the Muslim
community Muslims are bound to follow Sharia in their religious matters
http://www.aimplboard.in/images/media/Press13-10-2016%20ENGLISH.pdf
2
Dilshan Pathan vs Ahmadkhan Pathan 2007 (109) Bom L R 197
3
Ahmedabad Women Action Group v Union of India [(1997) 3 SCC 573.]

The court must also note The Supreme Court has in the case of S. Veera Bhadharan vs. E.
V. Rama Swami Naicker widely interpreted Sec. 295 and has held that the words “any
object held sacred by any class of person” must be given wide interpretation and should not
be confined or limited to physical object like idols etc. and further unequivocally held that
“Sacred books like Bible or Koran or Granth Saheb is clearly within the ambit of those
general words”4
1.1.There is no violation of Article 21:
The Petitioner would like to further highlight on the wide interpretation of Article 21,
keeping in mind the changing times and the constantly evolving meaning of Article 21of the
Constitution, which has been held to include the ‘right to live with dignity’ under the case of
Olga Tellis v. Bombay Municipal Corporation5 and Maneka Gandhi v. Union of India6, it is a
duty of the society to make sure that the divorced Muslim wife have the provision to maintain
herself with dignity and is not led to destitution and vagrancy. This proves the fact that the
law itself acknowledges Triple Talaq as means of divorce not violative of article 21 but
highlights the right to maintenance within the purview of Article 21. In the present case the
“mehr” amount is given as maintenance to the respondent also, hence the claim of
violation of article 21 can be flawed.
1.2.Article 14 v. Article 25:
The petitioner would like to humbly emphasize on the non violative nature of Triple Talaq
and its concurrence of article 14 and 24 .In Krishna Singh v. Mathura Athir has held that
the Part III of the Constitution does not touch upon the personal laws of the parties. This
Court also observed that the High Court in applying the personal laws of the parties could not
introduce its own concepts of modern times but should enforce the law as derived from
recognized and authoritative sources. It is also submitted that since Part III of the
Constitution does not touch upon the personal laws of the parties, Court cannot examine the
question of constitutional validity.7
With reference to article 25 in Sardar Sydena Taher Saifuddin Saheb v. State of Bombay,
Supreme Court observed that the exception carved in Article 25 (2) of the Constitution of
4
S. Veera Bhadharan vs. E. V. Rama Swami Naicker1959 SCR 1211
5
Olga Tellis v. Bombay Municipal Corporation 1986 AIR 180
6
Maneka Gandhi v. Union of India 1978 AIR 597
7
Krishna Singh v. Mathura Athir (1981) 3 SCC 689

India to the Freedom of Religion enabling the state to enact was providing for “social welfare
and reform” was not intended to enable the legislature to “reform” a religion out of its
existence or identity. According to the Board, even while bringing in such a social reform it is
not permissible to change the entire practice or acts done in pursuance of such religion.8
The Petitioner would also like to highlight in Krishna Singh v. Mathura Athir, it has been
held that the Part III of the Constitution does not touch upon the personal laws of the parties.
This Court also observed that the High Court in applying the personal laws of the parties
could not introduce its own concepts of modern times but should enforce the law as derived
from recognized and authoritative sources. It is also submitted that since Part III of the
Constitution does not touch upon the personal laws of the parties, Court cannot examine the
question of constitutional validity of the practices of marriage, divorce and maintenance in
Muslim personal law.9
The constitutional validity of Article 14 and Article 24 was upheld and settled in the case of
Mohd Ahmed Khan v. Shah Bano Begum This judgment was followed by various
repercussions in the Muslim community who felt their faith was under threat. The Muslim
Personal Law Board opined that the Supreme Court was wrong in interpreting the holy Quran
as per a judicial stand taken whereby it was held that the court would not interpret religious
scriptures or holy books.10
The parliament to undo the effect of this judgment passed the Muslim Women (Protection of
Rights on Divorce) Act, 1986, which provided that under section 3(1)(a) a divorced women is
entitled to reasonable and fair provision and maintenance within the iddat period. The Act
while nullifying the Shah Bano ratio, tried to restrict the divorced Muslim woman’s right to
maintenance up to the iddat period only. The petitioner at this point would like to highlight
how the Constitutional validity of the Act was challenged on the ground of being violative of
Article 14, 15, 21 and 25 . The basic question raised by right activists was the necessity of
enacting an Act, completely segregating a section of the population, while a secular remedy
was already available under Section 125 of the Code of Criminal Procedure. In the face of
this burning controversy, the Supreme Court in the case of Daniel Latifi v. Union of India
approached a middle path and held that reasonable and fair provisions include provision for
8
Sardar Sydena Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853
9
Krishna Singh v. Mathura Athir (1981) 3 SCC 689
10
Mohd Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844

the future of the divorced wife (including maintenance) and it does not confine itself to the
iddat period only. The Constitutional validity of the Act was also upheld.11
The petitioner would also like to present to the honourable court a research finding12
conducted by the BMMA which upholds nature of triple talaq. Contrary to popular perception
that most Muslim women get unilateral divorces through phone, email and via text messages,
the BMMA case study shows only one divorce out of the 117 was delivered in the absence of
wife. As per the BMMA’s own findings, only 0.2% got divorced over the phone, 0.6%
received it through email and out of 525 divorces, only one was delivered via SMS, that is
only 0.19%. Thus the problem is not as serious as it is made out to be by the media and the
government. Moreover, as many as 220 divorces occurred in family homes, 110 in court and
46 through Darul Qaza. Thus as many as 71.6% of divorces happened publicly, according to
the BMMA’s study, in the presence of family members, judges, lawyers, panchayats, NGOs
and qazis. One is inclined to believe that in most cases there must have been some effort
at reconciliation prior to actual divorce pronouncement and divorce in most cases was just the
final act of amicably dissolving the marriage. The BMMA study itself reveals that in as many
as 40.57% cases, Muslim women demanded a divorce and therefore it is clear that poor
Muslim women, even under the existing and regressive MPL, do take initiative on their own.
Thus the BMMA has exaggerated the problem of unilateral divorces. A triple talaq at the
request of the wife or her family or as a result of mutual consent between two families may
not be that unjust. As compared to this, what about Hindu wives who are unceremoniously
discarded on flimsy grounds? The husbands remarry thereafter, without divorce, leaving
these destitute women to fend for themselves.
Hence, the Hon’ble Supreme Court being part of the judiciary is already burdened with
backlog cases and various cases on the matters of triple tally keeping that in view it seem
feasible for the Hon’ble Court to entertain the appeal based on the various findings above.
11
Daniel Latifi v. Union of India 2001 AIR 3958
12
FAIZAN MUSTAFA, The Debate on Triple Talaq Must be Based on Proper Research and Data,
https://thewire.in/77923/muslim-personal-law-reforms-bmma-studies/

2. Whether the Muslim woman’s right to claim maintenance from her husband
under section 125 Cr. P.C. is circumvented by the provisions of Muslim Women
(Protection of Right on Divorce) Act, 1986 and if so, whether it violates any of
the constitutional provisions?
It is most humbly submitted before this Honourable Court from the Petitioner that Section
125 of The Code of Criminal Procedure, 1973 although is a general provision but the law
demands the application of this provisions to the parties only to those who agree by mutual
consent to be governed by the said provision. The Petitioner humbly reiterates on the fact that
the applicability of Section 125 Cr.P.C. is applicable only upon the mutual consent of the
Muslim parties and no maintenance if the wife has deserted husband.
Moreover, In Krishna Singh v. Mathura Athir, has held that the Part III of the Constitution
does not touch upon the personal laws of the parties. This Court also observed that the High
Court in applying the personal laws of the parties could not introduce its own concepts of
modern times but should enforce the law as derived from recognized and authoritative
sources. It is also submitted that since Part III of the Constitution does not touch upon the
personal laws of the parties, Court cannot examine the question of constitutional validity.13
2.1 The application of Section 125 Cr.P.C. to Muslim Divorced women frustrates
the object of the Act of 1986:
It is most humbly submitted before this Honourable Court that Section 125 of The Code of
Criminal Procedure, 1973, albeit, is a general provision and is applicable to all irrespective of
any religion providing for maintenance but the law demands the application of this provisions
to the parties only to those who agree by mutual consent to be governed by the said provision.
The Muslim parties, being subject to Muslim Personal Law, in all respects are governed by
the Muslim Personal Law by default and hence the general law relating to maintenance
contained in Section 125 Cr.P.C. comes into application only upon the mutual consent of the
parties.
13
Supra note no.7 at page 13.

Well, a meticulous perusal of this provision conveys that where the parties in the matter of
maintenance are Muslim, the application of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 is implied. The Section 5 of the Act of 1986 calls for the mutual consent
of the parties, “by an affidavit or any other declaration in writing in such form as may be
prescribed”, to be governed by Section 125 of The Code of Criminal Procedure, 1973. If the
option is not exercised they will not be governed by the provisions of Section 125 of the
Cr.P.C.14 A petition under Section 125 of the Cr. P.C. by a Muslim divorced woman is
perfectly maintainable subject to the provisions of Section 5 of the Act of 1986.
In the case A.A. Abdulla v. Mohmuna Saiyadbhai it was held that, As per the provisions of
Section 5 -the application filed under Section 3(2) of the Muslim Women Act by a divorced
woman can be disposed of by following the provisions of Section 125 to 128 of the Criminal
P.C. if the divorced woman and her former husband file affidavits to that effect.15 It is
submitted that in the present case the Respondent has not given any consent whatsoever,
neither by an affidavit nor by any declaration in writing in the prescribed form to be governed
by the said provision. Therefore, Section 125 Cr.P.C. is not applicable to the parties in
question. The provisions of Section 125 to 128 of Cr.P.C. have no application after the
enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986.
2.2 The Petitioner here humbly reiterates that The Muslim Women (Protection of
Rights on Divorce) Act, 1986 has an overriding effect.
It is humbly submitted that The Muslim Women (Protection of Rights on Divorce) Act, 1986
has an overriding effect over all other laws. After the passing of the Act of 1986, there arose
a controversy whether Section 125, Cr.P.C. would be applicable to the case of a divorced
Muslim wife claiming maintenance from her former husband. Section 3 of the aforesaid Act
says that “notwithstanding anything contained in any other law for the time being in force”
which limits the application of Section 125 of the Code of 1973 to divorced Muslim women
and facilitates the application of personal law in the matter of maintenance, thereby, effecting
the spirit and objects of Islam.
14
Aqil Ahmad, Mohammedan Law, 23rd Edition.
15
A.A. Abdulla v. Mohmuna Saiyadbhai AIR 1988 Guj 141

Moreover, Section 4 of the Act of 1986 lays down that the liability to pay maintenance to a
divorced woman, if she is unable to maintain herself after the period of “iddat”, is devolved
upon the relatives and if the relatives are not available, on the Waqf Board. The husband is
liable to maintain his wife only during the period of “iddat”.16 In the case Md. Yunus v. Bibi
Phenkani alias Tasrun Nisa it was held that, the right to get maintenance from her husband
given to a wife under Section 125 of the Code until she remarries has been impliedly repealed
in case of a divorced Muslim wife governed by the provisions of Section 3(1)(a) of the Act of
1986.17 The Act of 1986 does not contain any saving clause for the right created on orders
passed in favour of a divorced Muslim woman. The Act has completely obliterated the right
of such woman to get maintenance.
Further in the case Abid Ali v. Mst. Raisa Begum it was said that, the repeal without saving
such right means that such woman had never acquired such right and that right now cannot be
enforced under Section 125(3) of the Code.18 In the case Rizwana Begum v. Matiullah it
was held that, Section 125 of the Code will have no application to the case of a divorced
Muslim woman who is governed by the provisions of the Act of 1986.19 Where an order was
made for the maintenance of a wife under Section 488 of the Old Code(Cr.P.C) and she was
divorced, the order ceased to operate on the expiration of the period of “iddat”.20
In view of Section 7 of the Act it is clear that if any application by a divorced woman under
Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 was pending
before a Magistrate on the commencement of the said Act, the application shall,
notwithstanding anything contained in the Criminal Procedure Code and subject to the
provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the
provisions of the Act. In other words the Magistrate was bound to apply the provisions of the
Muslim Women Protection Act to all pending applications.
In the case Mahamadrafik Akbar Bagwan vs Nurbegam Mahamadrafik Bagwan And Ors
it was admittedly given that the application which was pending was under Section 125 of
Cr.P.C. and hence would have been normally covered by the provisions of Section 7 of the
16
Supra note no.14 at page no.17
17
Md. Yunus v. Bibi Phenkani alias Tasrun Nisa (1987) 2 crimes 241.
18
Abid Ali v. Mst. Raisa Begum (1988) 1 Raj LR 104.
19
Rizwana Begum v. Matiullah 1989 Cr.LJ (NOC) 155 Ori.
20
Sir Dinshaw Fardunji Mulla, 18th Edition, at p.301.

said Act.21 In another famous case Karim Abdul Rehman Shaikh vs Shehnaz Karim
Shaikh & Others it was explicitly mentioned that, Section 7 of the Muslim Women Act
which provides that all applications under section 125 and section 127 of the Code pending
on the commencement of the said Act barring those governed by section 5 thereof have to be
dealt with in accordance with the provisions of the Muslim Women Act, makes it abundantly
clear that after commencement of the Muslim Women Act, a divorced Muslim women cannot
apply for maintenance by invoking the provisions of Chapter IX of the Code.22
A divorced Muslim woman, irrespective of being able to maintain herself or not, desirous of
obtaining maintenance from her former husband, can get maintenance from him, confined to
Iddat period. Her proper remedy to recover this limited kind of maintenance and also to
recover maintenance for her children being maintained by her up to their ages of 2 years,
similarly presenting the present facts of the case the petitioner humbly acknowledges the
maintenance amount of Rs. 25,000/-. Thus, the respondent is not entitled to get any
maintenance beyond the iddat period as no provision of law extends the liability of husband
to provide maintenance beyond iddat period. The husband has already performed his part of
obligation and has rightly discharged his duties and his liabilities.
21
Mahamadrafik Akbar Bagwan vs Nurbegam Mahamadrafik Bagwan And ... on 15 December, 1998
22
Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh & Others on 11 July, 2000

3. Whether a married woman in general and a married Muslim woman in

particular has a legal right to claim separate residence in the matrimonial home?
It is the submission of the petitioner that the respondent doesn’t have a legal right to claim
separate residence in the matrimonial home. The order of the revisional Court granting
maintenance to the wife was challenged by husband Sharadchandra in this Court. The
Division Bench took the view that since Civil Court had determined the issue
of desertion and held that the wife had deserted the husband without reasonable cause and
without his consent and against his wish, she was guilty of refusing to live with
her husband and, therefore, she was not entitled to maintenance under section 125 of the
Code.
3.1.Legal right to claim separate residence in the matrimonial home for a married
women in general:
It is humbly submitted that the petitioner would specify that Sec.18 of Hindu adoption and
Maintenance Act,1956 defines “a Hindu wife shall entitle to live separately from her husband
without forfeiting her claim to maintenance if he is found guilty, desertion or abandoning her
without reasonable cause and without her consent or against her wish or willfully neglecting
her or if he has treated with such cruelty as to cause a reasonable apprehension in her mind
that it will be harmful or injurious to live with her husband” but, by interpretation of this
provision the women in general shall not be entitled to live separately with a separate
residence in a matrimonial home if the husband is not found guilty of desertion or
abandoning her without reasonable cause or if he’s not guilty of cruel behavior towards the
women.
Under section 22 of the divorce act 1869, if either of the spouse has deserted another for 2 or
more than 2 years without any reasonable cause it can be considered as a vital ground for
divorce, In the case Ram Parkash vs Smt. Savitri Devi23 The petitioner humbly submits that
in the case it was held that it is the duty of the wife to live with her husband wherever he may
choose to reside and to fulfill her duties in her husband's home. She has no right to separate
residence or maintenance unless she satisfies the Court that the husband had refused or
23
Ram Parkash vs Smt. Savitri Devi AIR 1958 P H 87

neglected to maintain her in his own place of residence or that the wife by reason of the
husband's misconduct was justified in living separate and apart from him. She cannot claim
separate maintenance if she leaves her husband's home of her own accord or for reasons
which are not considered proper, which in this case was she left her husbands home on her
own accord and hence not justifiable.
3.2.Legal right to claim separate residence in the matrimonial home for a married
Muslim women:
It is also to be noted unlike the Hindu joint family, in Muslim families the husband cannot
give a part of the ancestral property to the divorced wife, as it is not his separate property but
the property of the family as a whole, hence cannot be given to the divorced wife. Tarini
Gupta Chowdhury vs Sm. Gouri Gupta Chowdhury24 “The most important aspect of
residence is that the party which relies on it has an independent property to support
himself/herself. The main point we have to focus on is individual property.”
The interpretation placed on the Arabic word 'mata' by this Court in Shah Bano's case is
incorrect and submitted that the maintenance which includes the provision for residence
during the iddat period is the obligation of the husband but such provision should be
construed synonymously with the religious tenets and, so construed, the expression would
only include the right of residence of a Muslim divorced wife during iddat period and also
during the extended period under Section 3(1)(a) of the Act.
The petitioner is willing to provide residence during the period of iddat but which is in the
same lines of the religious tenets and customs beyond which the petitioner is hesitant to
provide the said residence as it falls out of the gambit of The Holy Quran.
24
Tarini Gupta Chowdhury vs Sm. Gouri Gupta Chowdhury AIR 1968 Cal 567

PRAYER
Wherefore in the light of aforesaid facts, issues raised, arguments advanced and authorities
cited, it is most humbly prayed that this Honourable Court may graciously be pleased to:
1. “Talaq” should be regarded as a valid form to end the conjugal rights and
constitutionally valid
2. The enhanced maintenance which was decided by the honourable high court should
be held as impugned decision as it violates Musilm personal law.
Or grant such other relief as the Court may deem fit in the light of justice, equity and good
conscience.
And For This Act of Kindness the Petitioner Shall Duty Bound Ever
Pray
COUNSEL(S) FOR THE PETITIONER

In The Hon'Ble Supreme Court of India: Rafiq Ahmed . Petitioner v. Afsana ..Respondent

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-Second SGT University - Indian National Bar Association National Moot Court Competition, 2017-

TEAM CODE: SGT 207

IN THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION NO............/ OF 2017

[UNDER ARTICLE 136 OF CONSTITUTION OF INDIA]

Rafiq Ahmed ….………………………………Petitioner

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

- Memorandum Drawn And Filed By The Petitioner- Page 1

List of Abbreviation ..................................................................................3

Index of Authorities ...................................................................................4

Statement of jurisdiction ...........................................................................6

Statement of facts .......................................................................................7

Statement of issue .......................................................................................9

1.1. There is no violation of Article 21:...........................................................13

1.2. Article 14 v. Article 25:.............................................................................13

- Memorandum Drawn And Filed By The Petitioner- Page 2

1. AIR All India Reporter

- Memorandum Drawn And Filed By The Petitioner- Page 3

S.No CASE CITATION

- Memorandum Drawn And Filed By The Petitioner- Page 4

6. Mulla’s Personal law, 16th Edition, Allahabad Law Agency

- Memorandum Drawn And Filed By The Petitioner- Page 5

136. Special leave to appeal by the Supreme Court ---

- Memorandum Drawn And Filed By The Petitioner- Page 6

- Memorandum Drawn And Filed By The Petitioner- Page 7

- Memorandum Drawn And Filed By The Petitioner- Page 8

1. Whether ‘Triple Talaq’ is unconstitutional on the ground that it violates the

- Memorandum Drawn And Filed By The Petitioner- Page 9

1. Whether ‘Triple Talaq’ is unconstitutional on the ground that it violates the

- Memorandum Drawn And Filed By The Petitioner- Page 10

3. Whether a married woman in general and a married Muslim woman in

- Memorandum Drawn And Filed By The Petitioner- Page 11

1. Whether ‘Triple Talaq’ is unconstitutional on the ground that it violates the

- Memorandum Drawn And Filed By The Petitioner- Page 12

1.1.There is no violation of Article 21:

1.2.Article 14 v. Article 25:

- Memorandum Drawn And Filed By The Petitioner- Page 13

- Memorandum Drawn And Filed By The Petitioner- Page 14

- Memorandum Drawn And Filed By The Petitioner- Page 15

- Memorandum Drawn And Filed By The Petitioner- Page 16

- Memorandum Drawn And Filed By The Petitioner- Page 17

- Memorandum Drawn And Filed By The Petitioner- Page 18

- Memorandum Drawn And Filed By The Petitioner- Page 19

3. Whether a married woman in general and a married Muslim woman in

- Memorandum Drawn And Filed By The Petitioner- Page 20

- Memorandum Drawn And Filed By The Petitioner- Page 21

COUNSEL(S) FOR THE PETITIONER

- Memorandum Drawn And Filed By The Petitioner- Page 22

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